[Ord. No. 587-2007 § 1]
The municipality hereby grants to Comcast renewal of its non-exclusive
Municipal Consent to place in, upon, across, above, over and under
highways, streets, alleys, sidewalks, easements, public ways and public
places in the municipality, poles, wires, cables, underground conduits,
manholes and other television conductors, fixtures, apparatus and
equipment as may be necessary for the construction, operation and
maintenance in the Municipality of a cable television and communications
system.
[Ord. No. 587-2007 § 2]
For the purpose of this chapter, the following terms, phrases,
words and their derivations shall have the meaning given herein. Such
meaning or definition of terms is supplemental to those definitions
of the Federal Communications Commission ("FCC") rules and regulations,
47 C.F.R. Subsection 76.1 et seq., and the Cable Communications Policy
Act, 47 U.S.C. Section 521 et seq., as amended, and the Cable Television
Act, N.J.S.A. 48:5A-1 et seq., and shall in no way be construed to
broaden, alter or conflict with the Federal and State definitions:
ACT OR CABLE TELEVISION ACT
shall mean Chapter 186 of the General Laws of New Jersey,
and subsequent amendments thereto, N.J.S.A. 48:5A-1, et seq.
APPLICATION
shall mean the Company's Application for Renewal of
Municipal Consent.
BASIC CABLE SERVICE
shall mean any service tier, which includes the retransmission
of local television broadcast signals as defined by the FCC.
BOARD OR BPU
shall mean the Board of Public Utilities, State of New Jersey.
COMPANY
shall mean the grantee of rights under this chapter and is
known as Comcast of Avalon LLC.
FCC
shall mean the Federal Communications Commission.
OFFICE OR OCTV
shall mean the Office of Cable Television of the Board.
PRIMARY SERVICE AREA OR PSA
shall mean and consist of the area of the Municipality currently
served with existing plant as set forth in the map annexed to the
Company's Application for Municipal Consent.
[Ord. No. 587-2007 § 3]
Public hearings conducted by the Municipality, concerning the
renewal of Municipal Consent herein granted to the Company were held
after proper public notice pursuant to the terms and conditions of
the Act and the regulations of the Board adopted pursuant thereto.
Said hearings, having been fully open to the public, and the municipality,
having received at said public hearings all comments regarding the
qualifications of the Company to receive this renewal of Municipal
Consent, the Municipality hereby finds that the Company possesses
the necessary legal, technical, character, financial and other qualifications
and that the Company's operating and construction arrangements
are adequate and feasible.
[Ord. No. 587-2007 § 4]
The non-exclusive Municipal Consent granted herein shall expire
fifteen (15) years from the date of expiration of the previous Certificate
of Approval issued by the Board (with a 10-year automatic renewal
as provided by N.J.S.A. 48:5A-19 and 25, and N.J.A.C. 14:18-13.6).
In the event that the Municipality shall find that the Company
has not substantially complied with the material terms and conditions
of this chapter, the Municipality shall have the right to petition
the OCTV, pursuant to N.J.S.A. 48:5A-47, for appropriate action, including
modification and/or termination of the Certificate of Approval; provided
however, that the Municipality shall first have given the Company
written notice of all alleged instances of noncompliance and an opportunity
to cure same within ninety (90) days of that notification.
[Ord. No. 587-2007 § 5]
Pursuant to the terms and conditions of the Act, the Company
shall, during each year of operation under the consent granted herein,
pay to the Municipality two (2%) percent of the gross revenues from
all recurring charges in the nature of subscription fees paid by subscribers
for cable television reception service in the Municipality or any
higher amount permitted by the Act or otherwise allowable by law,
whichever is greater.
[Ord. No. 587-2007 § 6]
The consent granted under this chapter to the renewal of the
franchise shall apply to the entirety of the Municipality and any
property subsequently annexed hereto.
[Ord. No. 587-2007 § 7]
The Company shall be required to proffer service to any residence
or business along any public right-of-way in the Primary Service Area,
as set forth in the Company's Application. Any extension of plant
beyond the Primary Service Area shall be governed by the Company's
Line Extension Policy, as set forth in the Company's Application.
[Ord. No. 587-2007 § 8]
a. Restoration: In the event that the Company or its agents shall disturb
any pavement, street surfaces, sidewalks, driveways, or other surface
in the natural topography, the Company shall, at its sole expense,
restore and replace such places or things so disturbed in as good
a condition as existed prior to the commencement of said work.
b. Relocation: If at any time during the period of this consent, the
Municipality shall alter or change the grade of any street, alley
or other way or place the Company, upon reasonable notice by the Municipality,
shall remove, re-lay or relocate its equipment, at the expense of
the Company.
c. Maintenance: The Company shall be diligent in the removal of any
loose or dangling cable wires in an effort to prevent a hazardous
safety condition.
d. Removal or Trimming of Trees: During the exercise of its rights and
privileges under this franchise, the Company shall have the authority
to trim trees upon and overhanging streets, alleys, sidewalks or other
public places of the municipality so as to prevent the branches of
such trees from coming in contact with the wires and cable of the
Company. Such trimming shall be only to the extent necessary to maintain
proper clearance of the Company's wire and cables.
[Ord. No. 587-2007 § 9]
In providing services to its customers, the Company shall comply
with N.J.A.C. 14:18-1, et seq. and all applicable State and Federal
statutes and regulations. The Company shall strive to meet or exceed
all voluntary Company and industry standards in the delivery of customer
service and the maintenance of cable connection and shall be prepared
to report on it to the municipality upon written request of the Municipality
Administrator or Clerk.
a. The Company shall continue to comply fully with all applicable State
and Federal statutes and regulations regarding credit for outages,
the reporting of same to regulatory agencies and notification of same
to customers.
b. The Company shall continue to fully comply with all applicable State
and Federal statutes and regulations regarding the availability of
devices for the hearing impaired and the notification of same to customers.
c. The Company shall use every reasonable effort to meet or exceed voluntary
standards for telephone accessibility developed by the National Cable
Television Association (NCTA).
d. Nothing herein shall impair the right of any subscriber or the Municipality
to express any comment with respect to telephone accessibility to
the Complaint Officer, or impair the right of the Complaint Officer
to take any action that is permitted under law.
[Ord. No. 587-2007 § 10]
The Office of Cable Television is hereby designated as the Complaint
Officer for the Municipality pursuant to N.J.S.A. 48:5A-26(b). All
complaints shall be received and processed in accordance with N.J.A.C.
14:17-6.5. The Municipality shall have the right to request copies
of records and reports pertaining to complaints by Municipality customers
from the OCTV.
[Ord. No. 587-2007 § 11]
During the term of this franchise, and any renewal thereof,
the Company shall maintain a business office or agent in accordance
with N.J.A.C. 14:18-5.1 for the purpose of receiving, investigating
and resolving all local complaints regarding the quality of service,
equipment malfunctions, and similar matters. Such a business office
shall have a publicly listed toll-free telephone number and be open
during standard business hours, and in no event (excepting emergent
circumstances) less than 9:00 a.m. to 5:00 p.m., Monday through Friday.
[Ord. No. 587-2007 § 12]
During the life of the franchise the Company shall give to the
Municipality a bond in the amount of twenty-five thousand ($25,000.00)
dollars. Such bond shall be to insure the faithful performance of
all undertakings of the Company as represented in its application
for municipal consent incorporated herein.
[Ord. No. 587-2007 § 13]
The rates of the Company shall be subject to regulation as permitted
by Federal and State law.
[Ord. No. 587-2007 § 14]
a. The Company shall provide Total Preferred cable television service
on one (1) outlet at no cost to each school in the Municipality, public
and private, elementary, intermediate and secondary, provided the
school is within one hundred seventy-five (175) feet of active cable
distribution plant. Each additional outlet installed, if any, shall
be paid for on a materials plus labor basis by the school requesting
service. Monthly service charges shall be waived on all additional
outlets.
b. The Company shall provide Total Preferred cable television service
at no cost on one (1) outlet to each police, fire, emergency management
facility and public library in the Municipality, provided the facility
is located within one hundred seventy-five (175) feet of active cable
distribution plant. Each additional outlet installed, if any, shall
be paid for on a materials plus labor basis by the Municipality. Monthly
service charges shall be waived on all additional outlets.
c. The Company shall provide free basic Internet service, via high-speed
cable modem, to one (1) non-networked personal computer in each qualified
existing and future public school in the Borough, elementary, intermediate
and secondary, at no charge provided the facility is located within
one hundred seventy-five (175) feet of active cable distribution plant.
The Internet service shall be installed on a personal computer that
is accessible to the students and not for administrative use only.
d. The Company shall provide free basic Internet access via high-speed
cable modem on one (1) non-networked personal computer in each qualified
existing and future public library at no charge provided the facility
is located within one hundred seventy-five (175) feet of active cable
distribution plant. The Internet service shall be installed on a personal
computer that is accessible to library patrons and not for administrative
use only.
e. Within six (6) months of the issuance of a Renewal Certificate of
Approval the Company shall provide to the Municipality a one-time
Technology Grant in the amount of forty thousand ($40,000.00) dollars
to meet the cable related needs of the community.
f. If the municipalities of the Borough of Avalon, Borough of Stone
Harbor and the City of Sea Isle City all agree to a term of fifteen
(15) years with a ten (10) year automatic renewal term, an additional
grant will be made to the Borough of Avalon in the amount of twenty
thousand ($20,000.00) dollars to be applied to the operation of the
local access channel for the benefit of all three (3) municipalities.
g. Within twelve (12) months of a written request by the Municipality,
and after at least twelve (12) months following the receipt of a Renewal
Certificate of Approval, the Company shall activate and maintain an
access point for the purpose of utilizing the Education/Government
access channel, to be located at the Avalon Public School/Library
Building.
[Ord. No. 587-2007 § 15]
a. The Company will continue to provide one channel for educational
and governmental ("EG") access for the shared use by the residents
of Avalon, Sea Isle City, and Stone Harbor (collectively, "Municipalities")
on the most basic tier of service offered by the Company in accordance
with the Cable Act, Section 623, and as further set forth below. Educational
access video programming shall be provided by the governing bodies
of Avalon, Sea Isle City, and Stone Harbor, or designated educational
institution(s). Government video programming shall be provided by
the governing bodies of Avalon, Sea Isle City, and Stone Harbor. Unused
capacity may be utilized by the Company subject to the provisions
for "fallow time" below.
b. The Company does not relinquish its ownership of or ultimate right
of control over a channel by designating it for EG use. An EG access
user — whether an educational or government user — acquires
no property or other interest by virtue of the use of a channel so
designated, and may not rely on the continued use of a particular
channel number, no matter how long the same channel may have been
designated for such use.
c. The Company shall not exercise editorial control over any educational
or governmental use of channel capacity, except Company may refuse
to transmit any educational or governmental access program or portion
of an educational or governmental access program that contains obscenity,
indecency, or nudity.
d. The governing bodies of Avalon, Sea Isle City and Stone Harbor shall
be responsible for developing, implementing, and enforcing rules for
EG Access.
e. Educational Access. "Educational Access" shall mean noncommercial
use by educational institutions such as public or private schools,
but not "home schools," community colleges, and universities.
f. Government Access. "Government Access" shall mean noncommercial use
by the governing bodies of Avalon, Sea Isle City and Stone Harbor,
for the purpose of showing the public local government at work.
g. Company Use of Fallow Time. Because blank or underutilized EG channels
are not in the public interest, in the event the Municipalities or
other EG access users elect not to fully program their EG access channel,
Company may program unused time on those channels subject to reclamation
by the Municipality upon no less than sixty (60) days written notice.
h. Indemnification. The Municipalities shall indemnify Company for any
liability, loss, or damage it may suffer due to violation of the intellectual
property rights of third parties on the EG channel and from claims
arising out of the Municipalities' rules for or administration
of access.
[Ord. No. 587-2007 § 16]
The Company will comply with the Emergency Alert System ("EAS")
rules in accordance with applicable State and Federal statutes and
regulations.
The Company shall in no way be held liable for any injury suffered
by the Municipality or any other person, during an emergency, if for
any reason the Municipality is unable to make full use of the cable
television system as contemplated herein.
[Ord. No. 587-2007 § 17]
The Company shall at all times maintain a comprehensive general
liability insurance policy with a single limit amount of one million
($1,000,000.00) dollars covering liability for any death, personal
injury, property damages or other liability arising out of its construction
and operation of the cable television system, and an excess liability
(or "umbrella") policy in the amount of five million ($5,000,000.00)
dollars.
[Ord. No. 587-2007 § 18]
All of the statements and commitments contained in the Application
or annexed thereto and incorporated therein, and any amendment thereto,
except as modified herein, are binding upon the Company as terms and
conditions of this consent. The Application and other relevant writings
submitted by the Company shall be annexed hereto and made a part hereof
by reference provided same do not conflict with applicable State or
Federal law.
[Ord. No. 587-2007 § 19]
Should the Municipality grant a franchise to construct, operate
and maintain a cable television system to any other person, corporation
or entity on terms materially less burdensome or more favorable than
the terms contained herein, the Company may substitute such language
that is more favorable or less burdensome for the comparable provision
of this Ordinance subject to the provisions of N.J.A.C. 14:17-6.7.
[Ord. No. 587-2007 § 20]
If any section, subsection, sentence, clause, phrase or portion
of this Ordinance is for any reason held invalid or unconstitutional
by any court or Federal or State agency of competent jurisdiction,
such portion shall be deemed a separate, distinct and independent
provision, and its validity or unconstitutionality shall not affect
the validity of the remaining portions of the Ordinance.
[Ord. No. 587-2007 § 21]
Nothing in this franchise or in any prior agreement is or was
intended to confer third-party beneficiary status on any member of
the public to enforce the terms of such agreements or Franchise.
[Ord. No. 587-2007 § 22]
This Ordinance shall take effect immediately upon issuance of
a Renewal Certificate of Approval from the BPU.